— This suit wa- brought by the appellant against the appellee to recover damages for injury to a horse of plaintiff’s, causing its death, by negligence on the part of the defendant's servants in and about the care of said horse while same was in the custody and keeping of the defendant as a livery stable keeper.
The only count of the complaint is distinctly for negligence, alleging that defendant “In' its agents or employes did negligently allow or cause said mare to be injured by being struck or falling, or receiving a blow,' in some manner unknown to the- plaintiff.” The suit is not for breach of a contract, nor is there any allegation of any contract as to where or how the mare was to be kept. Consequently the plaintiff could uot recover on the ground that it had been agreed that the mare should be kept in a box stall on the first floor, and that she was, in fact, kept in an open stall on the second floor. The substance of the evidence was that the stable boy in charge of the mare, after she had finished drinking,, raised his hand with a halter in it, and “shooed’’ the mare to make her return to her stall, and that, i n turning, she slipped on the cement floor and broke1 her thigh bone. It was a matter for' the court, acting without a jury, to determine whether, under all the circumstances, this was negligence; and, giving to the decision of the court the force aud effect of the verdict of a jury, we cannot say that the court erred in rendering judgment for the defendant.
The judgment of the court is affirmed.
Tyson, C. J., and Anderson and Henson, JJ.,concur.